Posts tagged ‘paternity disputes’

New Specialist Program Will Provide Extra Training to Parenting Co-ordinators

Parents who have had to determine child custody and related issues using the courts or other legal process may be familiar with the role of a “Parenting Co-ordinators.” In Ontario, that title describes a person hired to help resolve disagreements between separated and divorced parents on day-to-day matters affecting the children they have together, on diverse topics such as family vacations, involvement in sports and after-school activities, and the school they will attend.

The Parenting Co-ordinators steps in to help parents who have already reached a parenting agreement, or who are subject to a court order mandating the terms under which they are to deal with the children they have together, but who do not see eye-to-eye on how those arrangements are to be implemented.

Now, the role of Parenting Co-ordinators will gain some certainty and consistency in this province, since the Family Dispute Resolution Institute of Ontario (FDRIO) has begun to offer a new certified specialist program in 2017. The 30-hour program provides participants with training on Family Law issues, with a view toward arming them for dealing with high-conflict parenting disputes in particular.

According to its website, the FDRIO is an organization who supports dispute resolution professionals across Ontario, and its members include not only Parenting Co-ordinators but also “mediators, arbitrators, financial professionals … coaches and consultants, collaborative practitioners, therapists/assessors, child and family specialists and elder/estates specialists.”

This is a voluntary program, so it is not mandatory for any Parenting Co-ordinator to have the designation before accepting a retainer in a family law matter between parents. But for those who choose to take the program, it provides consistent, professional training in the standards that help optimize their role. The FDRIO already publishes Standards of Practice which guides these professionals on certain aspects of their facilitative role.

The move is a welcome step toward standardizing the profession. Unlike other jurisdictions, including certain U.S. states, the function and mandate of Parenting Co-ordinators is not established or even referred to in provincial legislation. Rather, it is established by private contract between the parents and the professional, and involves mediation that can lead up to binding arbitration under the Family Law Act if necessary.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Wednesday’s Video Clip: Can my ex use private text messages between myself and my current partner as evidence?

Text messages are often used in family court, and can be used as evidence towards custody and access. However, where the text messages have been used without permission, judges have split on whether or not they should be admissible.

A judge’s analysis of admissibility generally turns on “probative value vs. prejudicial effect.” In other words, judges will determine if the usefulness of this evidence will outweigh the harm it may cause one of the parties.

“Usefulness” is associated with the best interests of the child. Unfortunately, it is impossible to know for sure if a judge will hold in favor of admitting illegally obtained messages. However, many judges start from an exclusionary standpoint, as they do not want to foster the inherent mistrust that is present in many family law matters.

From this position, judges may decide that a litigant will have to show a very compelling reason to admit communications that were received improperly.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.

Sometimes the little things can speak volumes.

In this case, among the “little things” that the judge referred to a stuffed animal that was dear to the child that the warring parents had together.

The back-story was this: The couple had met when they both worked as flight attendants. When she unexpectedly became pregnant with his child, they agreed that she would move in with him, but she moved out about 6 weeks later because he was inflexible and domineering with her and with her two older twins from another relationship. The acrimony continued – and indeed was heightened – in the time following separation, when the parents had numerous conflicts over sharing custody and their different approaches to caring for the child. They now appeared before Justice Pazaratz to determine who should have sole custody of their 3.5-year-old child (and neither of them was willing to compromise with joint custody or parallel parenting).

Justice Pazaratz chronicled numerous incidents between the couple, with the pervasive theme being the intransigence of the father in his dealings with the mother and their child. The judge wrote:

FLUFFY

But perhaps the most mind-boggling expression of the [father’s] hostility and defiance toward the [mother] relates to Fluffy: a small, white, stuffed animal [the daughter] became attached to when she was about seven months old. The [mother] testified at length about this — and the [father] didn’t deny any of her allegations.

The first incident occurred in March 2015:

[The daughter] was experiencing separation anxiety when she went on visits with the [father].

So the [mother] said she “negotiated” with [the daughter] that she could take Fluffy with her when she went on visits.

When the [father] arrived at the front of her home to pick [the daughter] up for a visit he immediately pulled Fluffy from [the daughter’s] arm, pushed Fluffy into the [mother’s] face, and told her “I have my own stuffed animals.”

The [mother] testified [the daughter] became hysterical, but the [father] simply left with the child. Fluffy stayed behind.

The second incident occurred in April 2015:

The [wife] sent the [husband] an e-mail explaining that [daughter] was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring.

However, when the [father] attended at the front of her home to pick [the daughter] up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway.

Once again [the daughter] became hysterical. The [father] took her for the visit. The [mother] retrieved Fluffy and went back in her house.

The [mother] testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue. (Pause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution.) The [father] finally agreed that Fluffy could accompany [the daughter] during visits.

But it turned out to be a pyrrhic victory for common sense.

The [father] developed a new routine:

At the beginning of each visit, when he came to pick up [the daughter], she was allowed to bring Fluffy with her.

But as soon as they got to his car, the [father] tossed Fluffy into his trunk and closed it. They then drove away.

To the [mother’s] knowledge, Fluffy remained in the trunk during the entire visit.

At the end of visits, the [father] retrieved Fluffy from his trunk, and handed the doll back to [the daughter].

I suppose technically Fluffy got to come along for the ride.

But things got even worse for Fluffy.

The [mother] testified that after a while, whenever Fluffy came out of the [father’s] trunk, the little stuffed animal smelled terrible. Fluffy gave off a noxious odor, as if dipped in Vicks VapoRub or camphor oil.

The [mother] said on three occasions she had to wash Fluffy because [the daughter] couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance.

The [mother] e-mailed the [father] asking why he was damaging the child’s prized possession.

The [father] accused her of fabricating a complaint.

The [mother] said she finally gave up and stopped sending Fluffy.

…

I have no idea why the [father] allowed Fluffy to turn into such a major and unwinnable competition.

He doesn’t like the [mother]. I get it.

…

But Fluffy was just….Fluffy.

Just a harmless little toy of no consequence to anyone….except a vulnerable two year old caught in the middle of a bitter custody dispute.

Would it have killed him to just let the child hang on to her toy?

Was it really necessary to make his daughter cry, just to flex his need for control?

In Coe v. Tope, 2014 ONSC 4002 (Ont. S.C.J.) this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Despite finding that they were both good parents and both loved the child equally, Justice Pazaratz concluded as follows:

The bottom line: Despite unquestioning love, incredible passion, and impressive credentials — the [father] has given us every reason to worry that if he is granted decision making authority, he will not promote the [wife] in [the daughter’s] life. There is a real danger he will shut the mother out.

In contrast, the [mother] has provided overwhelming reassurance that she has always made good and fair decisions for [the daughter], and she will continue to co-parent with the [father].

Family Court Judges don’t have a crystal ball. We can only go on the basis of how parents have behaved so far.

After reviewing all the circumstances in detailed and lengthy reasons, Justice Pazaratz concluded that it was in child’s best interests that mother be granted sole custody. And – true to form – he added the following admonishment to the father, at the end of the judgment:

POSTSCRIPT

If only he’d been nice to Fluffy.

If only he’d been nice to the [mother].

If only the [father] had remembered the two magic words of custody cases.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Some surmise that children of divorce may experience a greater chance of divorce when they grow up because of their environment. Recent studies and news reports suggest that when it comes to divorce history may indeed repeat itself but not for the reasons you may think.

Studies and prior literature emphasized that divorce was transmitted across generations psychologically and as a result of environmental factors.

However, recent studies “contradict that, suggesting that genetic factors are more important.”

The study’s findings are notable because they diverge from the predominant narrative in divorce literature, which suggests that the offspring of divorced parents are more likely to get divorced themselves because they see their parents struggling to manage conflict or lacking the necessary commitment, and they grow up to internalize that behavior and replicate it in their own relationships.

…

[The study] analyzed Swedish population registries and found that people who were adopted resembled their biological — but not adoptive — parents and siblings in their histories of divorce.

By recognizing the role that genetics plays in the intergenerational transmission of divorce, therapists may be able to better identify more appropriate targets when helping distressed couples, Salvatore states:

“At present, the bulk of evidence on why divorce runs in families points to the idea that growing up with divorced parents weakens your commitment to and the interpersonal skills needed for marriage. So, if a distressed couple shows up in a therapist’s office and finds, as part of learning about the partners’ family histories, that one partner comes from a divorced family, then the therapist may make boosting commitment or strengthening interpersonal skills a focus of their clinical efforts.”

So how does free will and fault play into divorce in light of these findings?

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce. However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

As a result, someone’s genetic disposition, as it relates divorce, will not shape the outcome of the divorce proceeding. But as Dr Salvatore’s study suggest, this information would be helpful in therapy and focusing clinical efforts on boosting commitment or strengthening interpersonal skills.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Senate Bill 1393 would require courts to give frozen embryos to the spouse who “intends to allow the embryos to develop to birth.”

It was reported that “If both adults want to use the embryos to have a baby, the court would have to give them to the one who “provides the best chance” of successfully doing so. … [and that] the spouse who does not receive the embryos would not have parental rights or responsibilities to any resulting children unless they agree to them.”

“Opponents say it would interfere in infertility treatment, could force exes to become parents against their will, and is a back-door way to change the legal definition of personhood in Arizona.”

It was also reported that “The influential Center for Arizona Policy, an anti-abortion advocacy group, is pushing the legislation.”

In Canada, Do Sperm Cells Constitute “Property” Subject to Division After Separation?

We previously reviewed a British Columbia Court decision that reviewed whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

What is Ontario doing?

We previously reviewed the the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 proposes some important government-initiated changes designed to provide “greater clarity to parenting laws in Ontario”. As for November 2, 2016, the Bill has been ordered for Third Reading, which means it’s one step closer to being enacted into a law.

The Bill makes various changes to existing legislation, most notably the Children’s Law Reform Act where it sets out new rules of “parentage” for the purposes of all Ontario laws; it also clarifies the interplay of those new laws with existing ones. In particular, new provisions are aimed specifically at rights relating to children born through assisted reproduction, as follows:

• The mere fact that a person provides reproductive materials (i.e. sperm or an ovum) or an embryo for use in assisted reproduction is not in itself sufficient to make that person a parent (except of course where those items are provided for the person’s own reproductive use).

• A child’s birth parent, meaning the person who gives birth to the child, is considered a parent of the child; the only exception is a surrogate (who under normal circumstances is not considered to be the child’s parent).

• If the child is conceived without assisted reproduction, then the child’s biological father is also considered to be a parent, although this is subject to rebuttable presumptions (expressly set out in the new law) as to how the biological father may be determined. There are special rules for insemination by a sperm donor.

• If a child is conceived through sexual intercourse, then the person who provided sperm is also a parent of the child. Rebuttable presumptions are set out respecting how that person may be determined; the biological parents may agree in advance in writing that the person providing the sperm does not intend to be a parent of the child.

• A birth parent’s spouse at the time a child is conceived – either through assisted reproduction or through insemination by a sperm donor – is presumed to be a parent of the child. This is also subject to a rebuttable presumption, and there are also exceptions.

• A birth parent may enter into a pre-conception parentage agreement, involving one or more persons, in which they agree together to be the parents of a child who has not yet been conceived. To be valid, the agreement must involve no more than four parties.

Obviously this is an evolving area of law for many jurisdictions with different governments and Courts having quite different approaches to the difficult question: What happens to embryos after divorce?

What do you think?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

If a spouse declares bankruptcy, is he or she then prevented from claiming for equalization of Net Family Property (NFP?) under Ontario Family law?

That was the question in Kinsella v. Mills, which involved a couple who had separated after 7 years of marriage. At that point, they signed Minutes of Settlement that finalized the splitting of their financial affairs, which was intended to deal with all issues including spousal support, equalization of NFP and constructive trust claims. The Settlement reflected the couple’s agreement that the husband would take sole ownership of the matrimonial home and assume all debts and costs, and in return would pay the wife an agreed lump sum, together with a monthly amount.

Less than a year later, the wife declared bankruptcy. She was automatically discharged nine months later. The couple’s divorce was formalized a few months after that.

The wife then applied to the court to set aside that Settlement, claiming that it was unfair, signed under duress, and in a situation where she had no independent legal advice and did not know what she was signing. If she was successful, the wife planned to re-launch her claim for equalization of NFP, and wanted it divided unequally in her favour.

The husband resisted, pointing out that after the marriage breakdown he was left with a large amount of debt. Because of the wife’s bankruptcy, she was released from having to pay it, but he was still saddled with debt that they had rung up together. Nothing about the Settlement was unfair, in his view.

The court was asked to make a ruling. It observed that nothing in the Family Law Act or the federal Bankruptcy and Insolvency Act specifically prevents a spouse from making a claim for equalization of NFP after declaring bankruptcy. However, after examining the interplay between the two, the court concluded that the legislation operated to effectively do so. The court noted the following:

The wife’s claim to any equalization payment from husband fell within the very broad definition of “property” under the bankruptcy legislation.

The moment she declared bankruptcy, she was no longer entitled to dispose of or otherwise deal with her property. Instead, it immediately vested in the bankruptcy trustee.

Once any equalization claim vested with the trustee – and unless the trustee actually joined the wife in the Family Law proceeding – the wife’s hands were tied.

The court added that this impasse be remedied by the wife being discharged as a bankrupt, but getting the trustee’s consent to go forward, or by firing the trustee. The Family Court also had no authority to undo the wife’s bankruptcy.

Having found the wife to lack the capacity to bring the equalization claim, the court added that the Settlement itself was not subject to being undone, since there was no evidence of duress. The wife had also failed to obtain legal advice before signing it, despite being encouraged to do so.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

In this video a member of our firm discusses when the child support guidelines apply. If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.

This is true whether the order is applied for under:

• the Divorce Act by parents who are divorcing

• the Family Law Act by parents who were never married, or who were married and have separated but are not getting a divorce

The Guidelines must also be applied whenever a parent applies to the court to change any support order, even if it was originally made before the Guidelines came into effect.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Few of you can claim to be unaware of the upcoming wedding between Prince Harry and the American actress, Meghan Markle. But what far fewer of you will know, is that Meghan was previously married to a man named Trevor Engelson. They divorced in 2013 after two years, citing “irreconcilable differences.”

Although that brief marriage and subsequent divorce are otherwise unremarkable – and while there is no legal impediment to the upcoming Royal nuptials – in this case it requires the input of the Church of England, which religious organization was chosen by the couple to officiate their vows.

The website for the Church of England advises that “In certain circumstances the Church of England accepts that a divorced person may marry again in church and this has been the case since 2002.” As long as the betrothed couple have the legal capacity to get married in the first place, under the civil law of England a member of the clergy is entitled to officiate, but is advised to give greater pause when marrying those who have walked down the aisle before. Clergy are advised to make inquiries of the couple about how committed the couple are to each other, whether they intend to be faithful, and whether they intend for the marriage to be for life.

It seems to pose no real impediment in modern-day Britain. In contrast, when Harry’s father, Prince Charles married the previously divorced Camilla Parker-Bowles in 2005, they were married in a civil ceremony, rather than in a church, because their extra-marital affair was adjudged to have contributed to the breakdown of their respective marriages. (However, their marriage was later “blessed” by the church).

In Meghan and Harry’s case, the process will likely be simpler, and will require them to fill out a form, and to provide it to the officiating priest with proof that the Meghan’s divorce is “absolute”. It may also require the couple to engage in multiple interviews with the priest before the required official consent is given by the Church.

And leaving aside the religious requirements, it has been noted that the Royal rules and protocol must have relaxed somewhat, since Kate Middleton and Harry’s brother, Prince William, lived together before getting married.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

This is exactly what a 46-year-old man asked the Bombay High Court to consider. His argument was rejected.

The husband’s petition alleged:

• that his wife did not cook tasty food

• his wife would wake up late

• the wife failed to offer her husband “a glass of water”

• therefore the wife had failed to be “dutiful”

In finding that there was no cruelty, the Court noted that:

“One can’t lose sight of the fact that the respondent herself was a working woman who, in addition to her job, had the additional task of cooking each morning and evening, of buying vegetables, and groceries on her way home from work,”

Would this happen in Ontario?

To get a divorce in Ontario, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:

• you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or

• your spouse has committed adultery and you have not forgiven your spouse; or

• your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.

Most divorces are granted on the basis that the parties have lived separate and apart for one year. Rarely are the grounds of cruelty the basis of the divorce and if these grounds are alleged it could take well over a year for the court to determine the matter. Certainly the allegations considered by the Bombay High Court would not constitute cruelty.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

A judge in China’s city of Xi’an is requiring people seeking a divorce to take a “divorce examination”. The exam results will determine if they are allowed to proceed with their divorce. It was reported that some of the questions include:

“1. “How long have you been dating? What is your wedding anniversary? How do you split the household chores?” 2. “When you were dating, what words or actions did your partner say or do that moved you the most?” 3. “When you have differing views, which of you first breaks the deadlock and how is this done?” 4. “Of the duties that you take on in the family, which ones did you do well and which ones did you not do well? How do you plan to improve?”

The exam is designed to court time and resources and also to address China’s increasing divorce rate that has jumped by 8.3% in 2016. (4.3 million couples divorced In 2016).

What is Ontario Doing?

Ontario launched the Mandatory Information Program (MIP) that requires couples contemplating divorce to attend a MIP that provides information about separation and the related legal process, and may include information on topics such as:

• The options available for resolving differences (including alternatives to going to court);

• The impact that separation may have on children; and

• The resources available to deal with problems arising from separation.

Here are some other points to note about Ontario’s MIP:

• This is a mandatory information program only; it is NOT the same as mandatory mediation for spouses.

• Spouses do not have to attend the program together.

• It only applies to spouses who are asking for something in addition to divorce (i.e. spousal support, child custody, child access or child support, division of property, and/or equalization of net family property).

• If a spouse neither contests the divorce nor attends the mandatory information session, then the other spouse can have his or her claims proceed as “uncontested”.

• If only one spouse is filing for divorce, the other spouse only has to attend a separate session if he or she contests that divorce, or else makes his or her own claims.

• The fact that one spouse does not attend a mandatory information session does not prevent the spouses from obtaining a divorce.

It should be noted that there no divorce exam in Ontario (at least not yet).

Married couples seeking a divorce in Ontario are subject to the federal Divorce Act, which states that a court may grant a divorce to parties where there has been a “breakdown of the marriage.” Unlike a separation agreement that can be finalized outside of court, only a court can grant a divorce. It is up to the parties filing their application for divorce to satisfy the court that there has been a breakdown of the marriage.

According to the law, a breakdown is recognized where the parties have been separated for at least one year or where the party filing the application proves that their spouse has committed cruelty or adultery. In practice, the vast majority of couples rely on the one-year period of separation as the ground for divorce.

So what do you think? Are you ready to write an exam?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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About FamilyLLB

FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.